In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Friday, 6 January 2017

The First CopyKat of the Year, Courtesy of Tibbie

Back in July 2016, Disney took three Chinese
firms (Blue MTV, media company Beijing G-Point and PPLive Inc.) to court for
copyright infringement of ‘Cars’, the
main protagonist of which being ‘Lightning McQueen’.

Claimed to be infringing Disney’s copyright
in ‘Cars’ was another cartoon escapade surrounding automobiles called ‘Autobots’,
a Chinese film directed by Zuo Jianlong. A side-by-side comparison of the movie
posters for the ‘Autobots’ and ‘Cars’ can be found here.

Released at the very end of 2016, the ruling
in this case found that ‘Autobots’ does indeed infringe the copyright of
Disney’s ‘Cars’. More specifically, it was found that two characters from
‘Cars’ had been plagiarised – Lightning McQueen and Francesco Bernoulli.
Additionally, it was found that the ‘Autobots’ Chinese title characters had been
manipulated to make it appear as if the movie was part of the series. According
to Li Rongde of
Caixing Global,

“The Chinese
titles for the movies are very similar, with the local production’s being Mobilization of Autobots, while the
Disney film’s was Mobilization of Race
Cars. One crucial Chinese character that differentiates the words Autobots
and Race Cars was hidden behind an image of a wheel, a comparison of the two
movie posters showed.” [You can visually compare the Chinese characters between
the two posters here.]

Damages awarded by the Court, covering both
legal fees and compensation, amounted to 1.35 million Yuan ($194,000), although
it is interesting to note that the film grossed around $864,000 at the box
office, from a budget of approximately $431,000.

The case has been lauded as a success for
Disney, which recently opened a $5.5 billion Shanghai Disney theme park. It has,
however, also been reported that the director of ‘Autobots’, Zuo Jianlong will
launch an appeal.

Walt
Disney and the Public Domain in Canada

In keeping with the Disney theme, it is
interesting to note that any works of which Walt Disney was the sole or last
surviving joint author, are now in the public
domain in Canada, since he died in 1966 and Canada has a copyright term of
life + 50 years. It might be interesting to review any upcoming uses of such
works.

Online service providers benefit from the
Safe Harbor rule. Essentially, this means that companies which host third party
content will escape from liability for infringing content posted by third
parties (examples include YouTube, Google and Facebook, where users generate
content). The American
legislation (Digital Millennium Copyright Act (“DMCA”)) provides rules and
guidance on how Internet copyright infringement should be dealt with, as well
as guidelines on how to issue notice and takedown procedures, which enable
copyright holders to notify online service providers of infringing content
posted by third parties.

Designating an agent that deals with notifications
(i.e. take down requests) received from copyright holders alleging copyright
infringement is an essential component for online service providers to maintain
their limitation of liability. In order to designate an agent, an online
service provider must (i) provide contact details of that agent available on
its website and (ii) provide the same information to the US Copyright Office,
which maintains a directory for public use.Upon notification from the copyright holder of infringing content, the
designated agent has further statutory obligations, including the removal of
material identified as infringing. Appropriate designation of an agent is of
great importance, as failure to comply in BWP
Media USA v Hollyood Fan Sites (S.D.N.Y. 2015) led to the denial of safe
harbor protection.

***The
US Copyright Office is currently requiring each online service provider to
assign an agent to receive notifications of alleged infringement (as required
under the DMCA) on
a new online system, which can be found here.***

The US Copyright Office will no longer
accept paper designations, and the deadline to assign a designated agent on the
new online system is December 31 2017. Until 31 December 2017, an agent
compliantly registered in either the old directory or the new directory will
satisfy the online service provider’s obligation under section 512(c)(2) of the
DCMA. Register here.

***In order for
an online service provider to maintain its safe harbor from copyright infringement,
it must register its designated agent on its new online system by
December 31 2017.***Register here.

Google take down requests in 2016

Between 4 January 2016 and 4 January 2017 Google
removed 916 million URLs as a result of take down requests from copyright
holders.

UK music industry group BPI issued the most
take down requests, at 263 million – equating to an average of 763 per week. Of
these requests, 95% were removed. The other 5% are still pending. The
designated agent for Google would have to remove 22 URLs per hour for the
entire working year in order to meet these requests, keeping in mind that this
figure relates to the take down notices received from just one copyright
holder, amounting to just over a quarter of the take down notices over the
year.

In order to review the 915 million take
down requests issued throughout the year, the take down requests would have had
to have been reviewed at an average of 503,297 per working hour*. It is an
interesting reflection, especially considering the challenges ahead in how we
regulate copyright online.

*I haven’t taken into consideration
automation or outsourcing. These numbers are to simply illustrate the sheer
volume of take down requests made in 2016.

Australian online service providers ordered to block
pirate websites

In December last year, Australia’s biggest
online service providers (Telstra, Optus, TPG and M2) were injuncted
to block user access to The Pirate Bay, Torrentz, TorrentHound, IsoHunt and
SolarMovie. The court action was brought by copyright holders Foxtel and
Village Roadshow. The online service providers were given 15 business days to
implement the ruling in whichever manner they chose: DNS, IP address, ULR
blocks or any other technical approach.

The online service providers were able to
successfully argue against a rolling injunction scheme, whereby the copyright
holders would be granted the discretion to issue out-of-court orders to online
service providers to block mirror domains.

To further elucidate, when pirate sites are
blocked, proxies often pop up to replace the blocked sites. Once these proxies
are up and running, they effectively replace the infringing activity previously
performed through the injuncted sites. In order to have these new proxies
blocked, copyright holders must again take court action to have these new
infringing sites blocked – like a judicial game of whack-a-mole. A rolling
injunction scheme – allowing copyright holders to issue out-of-court orders to
online service providers – would avoid the necessity for copyright holders to
have to pursue another court action to block the new proxies. Richard
Lancaster, the lawyer of Foxtel and Village Roadshow stated
that the creation of proxies;

“is a known
problem in the real world. It will be a problem that arises in the
implementation of your honour’s orders. And we’re concerned – given this is the
first case – that a procedure be adopted that will not create a real
administrative burden for the future in having to do something unnecessary and
elaborate such as the [internet firms] suggest”.

Judge John Nicholas ruled that “Whether the
terms of any injunction should be varied to refer to additional domain names,
IP addresses or URLs is a matter for the court to determine in light of
evidence”.

Web-blocking is favoured by big creative
industry, however the fast pace creation of replacement proxies, coupled with
judicial reticence to issue rolling injunction schemes (in Australia, at least)
appears to highlight some of the forthcoming challenges in 2017.

Star Trek, the show that inspired the
creation of an entire fictional canon, is at the forefront of a current
fair use story.

“I don’t believe in a no win scenario” – Captain Kirk
on the Kobayashi Maru Test

In
2015 Paramount Pictures and CBS filed court action against the makers of
fan fiction spin-off Star Trek: Prelude to Axanar for copyright infringement.
Fan fiction has existed for a number of years, including works such as Star Trek: New Voyages
and Star Trek Continues, yet
this is the first to be targeted by the big studios in a court action. The
reasoning behind targeting this fan fiction project, as detailed by CBS and
Paramount, was that a studio had been constructed for filming - from which
future rental income could potentially be earned, Axanar tried to license out
their Star Trek through products and an attempt had been made to make Axanar
available to view on Netflix, all of which would lead to commercial gain for
the Defendants.

A significant consequence of the ruling
released this week is that the four factor fair use defence has been excluded for
use by the Defendants. A brief summary of the judges reasoning in relation to
the fair use aspect is found below, for the interested Trekkies among our
readers.

Factor 1, ‘The purpose and character of the use,
including whether such use is of a commercial nature or is for non-profit
educational purposes’ (17 U.S.C. § 107(1)) (also known as the ‘transformative
factor’):

The judge ruled that, even though no direct
commercial benefit would be received by the defendant,

“common
experience suggests that Defendants stood to gain at least indirect commercial
benefit from the viewership boost which they had reason to hope would (and in
fact did) result from the Axanar Works” (internal citations omitted)

The judge ruled that Axanor is not
transformative as a parody because “parody must use some elements of a prior
work to create a new work that criticizes the substance or style of the prior
work. … Here, the Court has difficulty discerning from the Axanar Works any criticism
of the Star Trek.” This factor weighed in favour of the Plaintiffs.

Factor 2, ‘The nature of the copyrighted work’ (17
U.S.C. §107(2))

The judge ruled that “the Star Trek
Copyrighted works include …. a fictional universe. … The creativity in these
Works and their status as published works …. are given broad copyright
protections.” This factor weighed in favour of the Plaintiffs.

Factor 3, ‘The amount and substantiality of the
portion used in relation to the copyrighted work as a whole’ (17 U.S.C.
§107(3))

“Defendants intentionally use elements from
the Star Trek Copyrighted Works to create works that stay true to the Star Trek
canon down to excruciating details. … elements of the Star Trek Copyrighted
Works pervade the Axanar Works. … the third factor weighs in favor of
Plaintiffs.”

Factor 4, ‘Effect of the Use upon the Potential
Market’ 17 U.S.C. §107(4)

“The Axanar Work is the kind of potential
derivative Plaintiffs would in general develop or license others to develop …
Defendants evidently intend for their work to effectively function as a market
substitution to the Star Trek Copyrighted Works … The fact that Defendants
distributed … for free online and intend to likewise distribute their future
works may likely increase the risk of market substitution as fans choose free
content over paid features.”

The exclusion of the fair use defence in
this case leaves only a finding of substantial similarity for a jury (it might
be safe to assume that Axanar is substantially similar to the Star Trek canon).
No other defences are available. Which means that, unless a deal is struck
between the parties in the meantime, resistance is futile
for Axinar.

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